Poultry-farmer claims to have fenced off scrubland and dumped manure there for dispersal–No evidence of discontinuance of possession by owners who had on two occasions applied for permission to develop the land–Acts of fencing etc too trivial to found a claim to adverse possession–Farmer held not to have acquired a possessory title
This was a
claim by Basildon District Council, as successors to Basildon Urban District
Council, against Mr Arthur Frederick Manning, for an injunction to restrain him
from entering certain land at Queen’s Park, Billericay, Essex, alternatively
for an order for possession of the land. The defendant counterclaimed a
declaration that he had a possessory title to the land.
Mr J M
Chadwick (instructed by Sharpe, Pritchard & Co, agents for J C Rosser,
manager, administrative and legal services, Basildon) appeared for the
plaintiffs, and Mr R E Denman (instructed by Oswald Hickson, Collier & Co,
agents for Wortley, Byers & Co, of Brentwood) represented the defendant.
Giving
judgment, FOSTER J said that the land in question, two plots, each having a
frontage of 25 ft to a then non-existent road known as Victoria Road and a
depth of 150 ft, was conveyed to one H A Cavalier in 1917 for £12. Mr Cavalier
died in 1954, and the land was later conveyed to his eldest grandson, Mr Henry
Samuel Podd, by a conveyance of December 21 1960. In fact in 1956 an
application had been made to develop the land, but that application was
withdrawn for some reason which never became apparent. However, Mr Podd on April
17 1969 made a similar application which was refused, and the result was that
the council purchased the disputed land on September 4 1970. On November 6 1937
the defendant purchased the property known as ‘Novoli,’ Victoria Road, for
£150. As early as 1928, he had started keeping poultry on land to the south
west which subsequently, in 1946, he purchased from his father, and he had
since continued that activity under the name ‘Novoli Poultry Farm.’ He was an accredited breeder of poultry under
the Ministry of Agriculture, and in the early 1940s, on one of the regular
visits of an inspector from the Ministry, the inspector told him that after 12
years’ occupation he could claim a possessory title to land. Since then he had
acquired a considerable further area of land in the vicinity of ‘Novoli,’ some
of it by purchase and some by acquiring and registering possessory titles which
had in some instances now become absolute. He claimed to have been in adverse
possession of the disputed land since 1944, but the only use he claimed before
1954 was the grazing of a pony, and this claim he had dropped, since it was
clear from his evidence that he had had Victoria Road made up in 1948 and that
no ponies had grazed on the disputed land since then.
The writ in
the action was issued on September 15 1972, and under the Limitation Act 1939
the defendant had to show that he had been in adverse possession for 12 years,
so that September 15 1960 was the vital date in this case. One of the problems
of poultry-farming was the disposal of poultry manure. The disputed land in
1954 was just scrubland, described by more than one witness as ‘a jungle,’
consisting of high hawthorn bushes and brambles and completely overgrown. The
evidence for the defendant was that in 1954 he fenced off the disputed land and
had since used it for agricultural purposes. From 1954 to 1967 poultry manure
was dumped on the disputed land, burnt and then dispersed. It was suggested
that the disputed land had been cleared of scrub by 1960, but he (his Lordship)
had no doubt that the land was not really cleared until 1967. In so far as the
poultry manure heap became too large, further parts of the scrub may have been
cleared, but the evidence against any substantial clearing having been done
before 1967 was overwhelming. There could be no doubt, however, that 11
contiguous plots including the two plots of the disputed land were cleared in
or about 1967 and were enclosed by a chicken-wire fence, and grass and clover
were then sown. From that time the defendant had placed on the land movable
chicken huts and had kept free-range hens on it.
The relevant
section of the Limitation Act 1939 was section 5, which contemplated two
possible cases, discontinuance and dispossession. For the defendant it was
submitted first that Mr Cavalier and his successors in title had discontinued
possession, or–as he (his Lordship) thought it must amount to–abandoned any
interest in the land. In Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex
& BP Ltd [1975] QB 94 at p 103 the Master of the Rolls said:
Possession by
itself is not enough to give a title. It must be adverse possession. The
true owner must have discontinued possession or have been dispossessed and
another must have taken it adversely to him. There must be something in the
nature of an ouster of the true owner by the wrongful possessor. . . . When the
true owner of land intends to use it for a particular purpose in the future,
but meanwhile has no immediate use for it, and so leaves it unoccupied, he does
not lose his title to it simply
like stacking materials; or for some seasonal purpose, like growing vegetables.
Ormrod LJ in
his judgment said at p 114 that the same point had been made by Bramwell LJ in Leigh
v Jack (1879) 5 ExD 264, at p 272. In his (Foster J’s) judgment, Mr
Cavalier until his death in 1954 intended one day to build upon the disputed
land, and the planning applications made in 1956 and in 1969 negatived any
intention on the part of his successors in title to abandon their title or
discontinue possession. As to whether there had been a dispossession, he (his
Lordship) thought that the acts relied on by the defendant to constitute
adverse possession from 1954 until 1967 were much more trivial that the acts
which were done by the plaintiffs in Wallis’s Cayton Bay case, and even
the acts done by the defendant on the land since its clearance in 1967 were not
sufficient to constitute adverse possession when compared with those in the Wallis’s
Cayton Bay case. It followed that the defendant was a trespasser on the
land.
His Lordship
granted an injunction to restrain further acts of trespass, and awarded nominal
damages of £2. He dismissed the defendant’s counterclaim, and awarded the plaintiffs
the costs of the action and counterclaim.
